21 August 2015

"170 insults to the dead..."

It is over. After a morning's drubbing from counsel for the bereaved families, the Glasgow fatal accident inquiry has heard its last from Harry Clarke. All that remains is for Sheriff Beckett to hear final submissions.

Today's evidence session seems to have proved as unedifying and uninstructive as yesterday's. Mr Clarke continued to invoke his right against self-incrimination. He continued to decline to answer the questions put to him. Practised cross-examiners all, Clarke was gutted by a series of strikingly quoteable barbs from the inquiry's lawyers.

Significantly, the driver indicated that he would have been willing to answer counsels' questions, if the sword of the private prosecution had not been dangling over him. We don't know if he would have taken the stand and cut a remorseful, more sympathetic figure if Dorothy Bain QC had not introduced the prospect of a private prosecution into proceedings. Perhaps Mr Clarke would, in any case, have behaved as he behaved yesterday.

But there is a tension between "wanting answers" on one hand, and wanting punishment on the other. Shy away from this conclusion. Sympathise with the fate of those who have been bereaved. Understand their anger with Mr Clarke. Wish he was a bolder man who feared no consequences and wished only to tell his story. All of this I can understand. But the hard truth of it is this: by trying to secure both truth and retribution, the FAI families have made it much more likely that they will secure neither. Understandably, perhaps, none of the coverage in the mainstream media has been prepared to point this out. Harry the doughball, Harry the inexplicable, heartless selfish monster is an easier story to tell.

This morning's media - unsurprisingly - has put the worst construction possible on Clarke's silence yesterday, suggesting it was motivated by arrogance, inhumanity, or just plain nastiness. For reasons I set out last night, this image of Mr Clarke leaves out crucial context which puts his behaviour in a more understandable, if not particularly heroic or admirable, light. Questions are now - quite properly - turning to the question of why the Crown Office decided against prosecuting Mr Clarke. Was the decision precipitately taken? The reasons for this decision have been so obscured in the past few weeks that it is worth recalling the explanation prosecutors gave last February. A Crown Office spokesman said:

"It is clear on the evidence at the time that the driver lost control of the bin lorry, resulting in the tragic deaths, he was unconscious and therefore not in control of his actions.

He did not therefore have the necessary criminal state of mind required for a criminal prosecution. In addition the Crown could not prove that it was foreseeable to the driver that driving on that day would result in loss of consciousness.

This still remains the case and all the relevant evidence regarding these points was known to Crown Counsel at the time the decision to take no proceedings was made."

The criminal law demands that prosecutors prove not only a guilty act - an actus reus - but also a guilty mind - mens rea. If I intend to harm you, or harm you because of complete disregard for the consequences of my actions, I can be punished. But if my actions were neither of these things, neither intentionally wicked or reckless, the criminal law will not generally hold me responsible for the damage I caused.

I didn't follow the medical evidence heard by the inquiry closely enough to come to a clear understanding of the expert consensus on whether Clarke's collapse was reasonably foreseeable. I doubt you did either. I don't have the expertise to come to any meaningfully informed view on this question following my own lights. All I have is assumptions - physiologically ignorant assumptions - which begin with the disaster in George Square last December and work backwards, coloured by the cold and unforgiving light of retrospect. The nation seems to have acquired a suspiciously high number of armchair experts in the diagnosis, treatment and recurrence of vasovagal syncope. I don't know enough - not nearly enough - to exculpate or to condemn.

The Crown have indicated that their decision last Feburary was informed by expert medical material, speaking to these critical issues. It isn't clear whether the inquiry has produced anything new or unexpected which might have rebalanced the assessment towards a prosecution - if only for the minor crimes of dishonesty which Mr Clarke may have committed in his interactions with his employers and the vehicle licensing authorities. Prosecutors seem to be maintaining that nothing which Sheriff Beckett has heard in court number five has surprised the Solicitor-General.

Nobody in public life should be above reproach. The judgement of no institution should be uncritically trusted. Informed and constructive criticism must always be welcome. To err is, proverbially, human. The existence of fatal accident inquiries attests to this. Sheriff John Beckett QC will shortly retire to consider the lessons which must be learned from this sorry turn of events, to weigh up the medical evidence, to consider whether our safeguards are nearly rigorous enough. On his shoulders falls the heavy duty of piecing together a constructive response to this tragedy. Good luck go with him.

8 comments
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As someone who has long suffered from a version of vasovagal syncope: orhostatic hypotension (feeling faint on standing) and a Physiology PhD I understand the issue quite well.

I cannot always tell when, given any standing from sitting or crouching I will feel lightheaded. Some things make it more likely, hot weather, after long runs in hot weather, alcohol, lack of salt. When in a prone period I can expect it constantly, at other times it strikes out of the blue and does not persist. I have never fainted. I have clutched walls and doors while the rushing in my ears abates and I can see again. I have learned to spot the signs as I rise and to walk fast (the pumping action of working leg muscles prevents the blood pooling in them).

Unlike Mr Clark I have never suffered such an incident while sitting. Perhaps my lifelong habitual distance running has helped, it has certainly given me good leg muscles. If I was not like that I can imagine suffering several episodes of fainting and falling over near insensible, with all the hazards that entails.

I have been faint in science labs with their attendant hazards, but not greatly so, they tend to be air conditioned spaces and cold rooms are available where one can go and stand for a while in hot weather, aahh! I'm working, really I am, looking at these samples.

In Mr Clark I see someone without my inherent abilities conferred by the genetic lottery or my fairly middle class upbringing. But I could have been he. I bet he cannot predict when or if this will happen to him or has my professional insights to the condition. Paradoxically you can suffer from this with high blood pressure. It is a problem with the regulation of blood pressure that is invariant wrt the underlying mean pressure.

Your points about the actions of SOME of the families is a good one. I wonder if their legal teams warned them of this possible result? Who would fancy loss of their liberty? Bravery can easily change to foolhardiness.

As Rab C would say, I'm working class scum. I know how difficult it is to get a job. Like most of my fellow scumbags, I would lie to get a job. Or I could let my family do without food.Is saying you have two PHDs to get a 'career' worse than admitting to a health problem? Does Osbournes cocaine past make him unfit to be a chancellor?

In a previous life I drove HGVs for a living. The medical examination (with your own GP) for these licences is a joke.

I don't suppose for a moment Harry Clarke deliberately lied - give him the benefit of the doubt. "I felt light-headed, I passed out once, isolated incidents".

But, look at the pictures of him. Like an awful lot of HGV drivers of his age, Harry is clearly over-weight, He probably does not eat a healthy diet, or exercise too-often, yet, he is in charge of what has been shown to be a potentially lethal weapon.

HGV drivers aged, like Harry Clarke, over-45, need only pass a medical examination every five years, a lot is taken on trust, it is easy to play down or ignore potentially serious health issues. Also, there is a lot of anecdotal evidence that issues such as HGV medicals are a nice wee earner for doctors - pay in cash, it doesn't go through the books.

Incidents such as that in George Square will always, I would suggest, be very rare, but, the flawed HGV medical protocols will continue to make them happen occasionally. The system needs tightening-up.

But, there is already a critical situation in this country, of an ageing HGV driver population, things will not change soon.

Can't understand why GP certification is still being used by the DVLA for fitness to hold any kind of driving licence. Most of them don't have the skills to make this kind of critical judgement.I worked with a GP in the south of England once, who approved the renewal of a driving licence of a patient who had reached 70, and had to reapply for his licence, as you now have to. He had diabetes and his eyesight was badly affected. He had had a TIA (mini-stroke) and his left side was weakened significantly. The GP signed him off as fit to drive.

We all sniggered when the poor guy ran into the GP's car outside the surgery..

The question though is how much information would have been gained by Mr Clarke apologising when asked to do so. Or indeed from answers to any of the other questions he refused to answer. It appears we know all about his previous medical conditions and the lies he made - and from the evidence given he has no knowledge of the incident itself. So a 3rd option presents itself - that Mr Clarke was worthless as a witness in any case, and the threat of prosecution hanging over him made no difference at all to the evidence available to the FAI. Maybe it would have been nice for the families to get an apology from him, but I doubt they'd have taken a great deal of comfort from that.

Regarding the lying being something anybody would have done to keep their job - well maybe that is the case, and maybe the answer is that we should be more robust in prosecuting those who lie in that way - all of them, not just the ones who kill people. I still cannot comprehend why the DVLA will not at least take this action against him. If the FAI makes any ruling on this or something similar, it is once again an issue on which the evidence of Mr Clarke would appear to add very little.

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